Tree roots are special defects and City responsible for real property it does not own says 1st Court of Appeals.

City of Houston v Cogburn, NO. 01-11-00318-CV, (Tex. Civ. App. – Houston [1st dist.] March 19, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction arising out of a premise/special defect case.  The Plaintiff, Cogburn, parked in a City parking spot and paid for the spot via parking meter.  When returning to the car, he tripped over roots which were in between the parking spot and the sidewalk and suffered several broken bones. The City filed a plea asserting it did not have actual knowledge of the condition [and other defenses].  Trial court denied the plea and the 1st District affirmed in this opinion. This is, at heart, a sufficiency of the pleadings case.

The important points to take away from this case are twofold. First, the court determined tree roots, at least in this case, can constitute a special defect which raises the duty the City owes from licensee to invitee status.  This holding is due mainly to the fact the Plaintiff pled the tree roots constituted an “excavation” which is the magic word to use in pleadings. More of a problem for cities is the holding that even though the City does not own or maintain the area between the parking space and sidewalk (evidence indicated a third-party owns the area) “renters” of the parking spaces had to utilize this intermediate property for ingress and egress to and from the sidewalk.  The court reasoned the City therefore maintained control over the area as a right-of-way.   As a result, the City can be held liable for personal injuries which occur on property it does not own for dangers it should have known about.

This holding is interlocutory and is based on whether the Plaintiff’s pleadings properly assert jurisdiction for a claim. Whether the tree roots are factually held to be excavations or whether the City truly did have a right-of-way across the third-party’s property are still up in the air. However, this opinion sets a dangerous precedent for cities and city attorneys need to be aware of its existence.

If you would like to read this case please click here.

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